The ‘Orphan Work’ Scam: Can the Global Repertoire Database Solve It?

The Global Repertoire Database – the project that will catalogue all the world’s music – today announced that it is setting up its global headquarters in London, while basing its operations in Berlin. It’s one step closer to the eventual launch of a one-stop-shop for licensing – though, of course, music services will still need to negotiate separately with rights holders.

The GRD will also help musicians prevent their work from being used legally, but without permission, under the recently-passed UK “Instagram Act“. The GRD won’t be able to protect musicians against the part of the British Enterprise and Regulatory Reform Act that allows agencies to license musical works without the owner’s permission – known as “extended collective licensing” – but at least it will give companies less of an excuse to claim a work is “orphaned” when it’s not. (Read more about the implications of the act in Andrew Orlowski’s excellent article on the subject.)

A work is considered an orphan when a “diligent” search fails to reveal who the owner is – and the Instagram Act allows the work to be used commercially without permission if this is the case. The main crux with this is, of course, what constitutes a diligent search.

Photographers, in particular, will pretty much be screwed by this Act as it’s next to impossible to conduct a truly thorough search for the owner of an image. The identifying information can easily be, and often is, stripped from the image.

But musicians can also fall victim to this “orphanisation”, considering the vast amount of musical works that are created every day, all over the world.

British performance right society PPL alone receives data on an average of 6,000 recordings a week – that’s a whopping 312,000 recordings a year.

A colleague of mine was once told by a label that it wouldn’t use his song as it had already been released. This came as news to the writer himself. He subsequently discovered that the demo of the song had somehow got into the hands of some Russians (even though it had only been sent to selected A&R people), who had started selling it on iTunes and a multitude of other music services.

Under the new Act, these Russians could be legally allowed to use the song – if they could prove they’d done a diligent search for the owner. They’d still have to pay my friend royalties for the usage, retrospectively, once they were found out, but the financial damage would already be done, as no one else would use it by then. Substitute the Russians for a porn site, and you can see how this could affect an artist that was trying to pitch their music for a family-oriented commercial, for example.

Even Shazam can only identify tracks according to what works it holds in its database – which is far from all works produced around the world. And Shazam doesn’t hold the information on ownership.

Up until now, there has been no central database for all music. Each owner registers their music with the local collecting society, and the information is duplicated by other local societies, some more accurate in their data input than others. Some independent labels have told me that, when looking deeper into the issue, they’ve found foreign labels that included their songs on compilations using their own ISRC codes (an internationally recognised system of identifying recordings). That is, with their country of origin, when registering the work, instead of those of the owner.

The GRD will make these “mistakes” much less likely to occur, as rightsholders will have one single database to check.

Andrew Jenkins, the chair of the International Confederation of Music Publishers said they chose the location for its operations partly due to the strength of legal protection for intellectual property – and I suspect Berlin was chosen due to it currently being the base for many European digital entrepreneurs, including SoundCloud.

Not only will the GRD, hopefully, make it easier for artists to get paid accurately when their music is used – it will make it easier for music services such as Rhapsody to display accurate credits. It couldn’t come soon enough.

4 Responses

Both conservatives and liberals should be frightened by the “Principles’” attempt to “reformalize” effective copyright protection by encouraging Goodlatte to take away “rights and remedies” for those who do not register their works. Especially those works that the report deems to have “no commercial value”—as decided by the elites rather than the market, apparently.

So if one of the “users” the principles seem to think they represent — like me — posts a photo of my children on my Facebook page but I don’t register it, and somehow a company or individual then uses this picture commercially, or in some other vile manner, this report explicitly states that I would not have the same “rights and remedies” that I currently enjoy. In fact my reading of this report says I would have no remedies unless I were to win an argument that my family photos have commercial value — full employment for lawyers.

So are we all gonna have to register our family photos with Big Brother in order to keep control of them?”

No one suggests that failure to register should cost a creator a copyright — those revisiting formalities suggest (correctly) that unregistered, unidentified works are unlikely to get paid or licensed, that registration should be encouraged by the law. Non-confiscatory solutions abound.

Neither will formalities run afoul of treaty obligations, which prohibit imposing registration on citizens of other countries. Brazil has for years properly required sound recording registration.

The notion that registration encourages piracy is outrageous. Pirates do not seek to clear rights. Registration encourages licensing, the lifeblood of ideas, not its alternative.

The GRD applies only to songs (lyrics, composition), not sound recordings, so this has no application whatsoever to “all the world’s music” rights.

The US already requires registration of homes, cars, voters and all manner of personal property. Those who love music will do well to embrace recordation and enumeration of their rights.

I wish you were right, but you’re not. The absolute expression of a new registry is to create a huge pool of orphan works for which the rightful copyright holders (individual citizens) would never be paid for – that’s just really very uncool.

Silicon Valley Robber Baron’s are stealing our Privacy and our Rights and people like you are allowing them to do it.

Sillicon Valley’s new ruling class are the 1% or the 1%, it’s time to wake up and smell the coffee.

You are substituting your choice of “punishment” on those who fail to register in order to shoot down the very idea of encouraging registration by those who can issue licenses for the purposes of payment and permission.

So I repeat: Non-confiscatory solutions abound.

Indeed, how do you get a license from or pay a non-registered owner? (And some songs have well over thirty owners!)

Is this how far we have sunk? That we actually claim others are trying to take things from us when they ask us to register for purposes of licensing and payment?

As for your claim that “the absolute expression of a new registry is to create a huge pool of orphan works for which the rightful copyright holders would never be paid” is bizarre because there is such a pool now. It consists of those who have not registered their works. Encouraging them to do so gets them paid and brings licensing opportunity otherwise non-existent.

Wake up! Or are you shilling for unattributed income divided by majors at the expense of unregistered creators you claim to defend?